outlined by counsel had been followed, and the stock had been sold on the 15th day of June, 1903, when the time limit fixed by the written agreement was reached, or if it had been sold within a resonable time thereafter, it could have been sold for sufficient to pay all that was then claimed as owing by appellant to the pool. Counsel therefore contend, that since respondents failed to close the pool, and failed to sell appellant's proportion of stock for his account and to apply the proceeds of such sale upon his indebtedness to the pool, therefore respondents cannot recover the purchase price of the stock from appellant. In this connection it is urged that in view that respondents do not in their complaint set forth that they had complied with the foregoing conditions, therefore the complaint is defective in substance, and, further, that since respondents did not prove by any competent evidence that they had discharged the duty required of them as aforesaid, therefore the conclusions of law and judgment of the court are erroneous. We cannot yield assent to counsel's contention. We can find nothing in the written agreement which made it obligatory upon respondents to so deal with the stock. Under the terms of the written agreement, respondents, no doubt, could have sold the interest of any defaulting member and thus could have cut him off from further participation in the profits of the pool, if any resulted. As we construe the agreement, however, the right to sell the shares of a defaulting member was a matter that was inserted in the agreement for the benefit of respondents as a means for the prompt enforcement of the obligations assumed by the parties to the agreement, and not for the benefit of the defaulting members, except as such sales of stock might incidentally benefit them by discharging their obligations to the managers of the pool to the extent that the proceeds of such a sale would discharge the obligation of the delinquent member to pay for the stock. The respondents, under the agree ment, had the right to carry the account of any of the members, however, and to thus permit any of them to continue their interest in the pool, and if this course was pursued

2

such member or members would, nevertheless be obligated to pay for his or their proportion of the stock purchased, not exceeding the amount subscribed for by each, unless such member or members expressly directed the respondents, as managers of the pool, to sell his or their interest therein and to apply the proceeds to the payment of his or their obligations. The fact that the market price of the stock which was purchased under the agreement fell, and continued to do so, and the venture entered upon and contemplated by the agreement proved to be anything but profitable—in fact, resulted in considerable loss to all of the parties—does not affect their legal status or obligations. Had the venture resulted in a profit under precisely the same facts and circumstances in so far as respondents' and appellant's conduct is concerned, he could have successfully claimed his share of such profits. This being so, we can see no legal reason which authorizes us to permit him to escape from the obligation to pay for his proportion of the stock which was purchased for account of the pool. Both the duty, as well as the rights, of all the interested parties were defined by the written agreement, and we cannot see wherein the respondents have failed to comply with the duties imposed upon them, while, upon the other hand, it seems clear to us that the appellant has failed to comply with the obligation assumed by him. No doubt, in view that the price of the stock declined, and continued to do so, respondents might easily have averted the loss to appellant had they promptly sold his portion of the stock at the time the pool was to be closed, but perhaps no one could have foreseen that the stock in question would decline in price to the extent that it did, and that such decline would continue as it did. But be that as it may, since the respondents have fulfilled their part of the agreement and appellant has not, there is but one result permissible in a court of justice, and that is to require him also to discharge the obligations he has assumed. If the respondents were to be treated as mere stockbrokers who had purchased the stock in question upon the order of appellant and upon a broker's margin, we think that under

the facts and circumstances disclosed by the evidence in the case it could not be held that under the general rules of law applicable respondents' conduct had relieved appellant from paying for his proportion of the stock purchased for account of the pool under the agreement. The reciprocal rights and duties of a principal and his stockbroker are clearly stated by the author of Mechem on Agency in section 936, and again referred to in section 955. The relations existing between respondents and appellant under the agreement in question, in essence and effect, were the same as those outlined by Mr. Mechem in the sections referred to. Under the law as there stated we think appellant would be clearly liable for the amount sued for in this action, and hence he must be held so under the agreement in question.

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From what we have said it follows that the contentions of appellant's counsel cannot be sustained. It further follows that for the reasons hereinbefore stated, counsel's objections to the complaint, and to the findings of the court, are immaterial, and, in view that counsel's theory of the case cannot prevail, the findings of the court are sufficient to sustain the judgment. Nor, in view of the conclusions we have reached, is it necessary to further discuss any of the other assignments of error.

The judgment, therefore, should be, and it accordingly is, affirmed, with costs to respondents.

MCCARTY and STRAUP, JJ., concur.

EVANS v. GLENS FALLS INSURANCE COMPANY.

No. 2150. Decided January 31, 1911 (113 Pac. 1019).

1. INSURANCE TERMINATION OF POLICY-MISTAKE ESTOPPEL. Defendant company issued a policy of insurance to plaintiff to expire September 25, 1907, and in October, 1907, a person acting as plaintiff's agent obtained from defendant's agent, a reduction of the amount of the policy and of the premium, nothing being said as to an extension, and the agent in granting the reduction on a slip attached to the policy inadvertently wrote "1909" for "1907" as the time when the policy expired. In May, 1907, the plaintiff received the policy with the slip attached, and in February, 1907, was given permission to remove the goods covered by the policy, on which there was a loss occurring in November, 1907. Held, that the defendant was not estopped by its conduct or laches from asserting that the indorsement was a mistake, and that it did not intend thereby to extend the term of insurance. (Page 470.)

2. INSURANCE-ACTIONS-EVIDENCE-FINDINGS. Evidence in an action on a fire policy held insufficient to support findings favorable to plaintiff. (Page 471.)

3. INSURANCE-ACTION ON

POLICY-EVIDENCE-BURDEN OF PROOF. Plaintiff declared on a policy of fire insurance alleged to have been made for one year to September 25, 1907, and to have been modified in October, 1907, by reducing the insurance and extending the policy for two years until September 25, 1909, and that it was in force at the time of loss November, 1907, which allegations were denied by the defendant. Plaintiff introduced the policy, in the body of which the date of expiration was stated as September 25, 1907, and on the back of which it was stated that it expired September 25, 1907, and that the premium was forty-one dollars and seventy cents. A slip attached to the policy showing a reduction of the policy and the premium stated: "Insurance under this policy is hereby reduced to two thousand five hundred dollars. Premium reduced to thirty-four dollars and seventy-five cents"-and on the margin of the slip were indorsements, "Extra Premium, $Nil, Return Premium, six dollars and ninety-five cents, Amount of Policy, three thousand dollars, and Date of expiration, Sept. 25, 1909." The date of expiration thus shown was an apparent clerical error made at the time the policy was reduced. Held, that the plaintiff had not sustained the burden of proof, since the words in the margin of the slip were merely words and figures descriptive of the policy, and not a substantial modification of it. (Page 472.)

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong, Judge.

Action by Agnes Evans against the Glens Falls Insurance Company.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL,

Willey & Willey and Pennel Cherrington (C. S. Varian of counsel) for appellant.

Gustin & Gillette for respondent.

STRAUP, J.

This is an action on a policy of fire insurance. The plaintiff had judgment. The defendant appeals.

In the body of the policy it is recited that the defendant, in consideration of "forty-one and 70/100 dollars premium, does insure Mrs. Agnes Evans," the plaintiff, "for the term. of one year from the 25th day of September, 1906, to the 25th day of September, 1907," against a loss by fire "to an amount not exceeding three thousand dollars" on certain property therein described, consisting of household goods stored in "Korn's warehouse," at Salt Lake City. On the back of the policy is indorsed: "Expires September 25, 07. Property, H. H. Furniture. Am't. $300. Premium, $41.70. Mrs. Agnes Evans." On the face of the policy is attached a white slip, in which is recited that the loss, if any, is payable to Benj. J. Lauer as his interest may appear. Attached to the face of the policy is also a pink slip (a regularly printed form with the blanks filled in by pen), which in words and figures reads as follows: